[This lecture, originally titled "Educate, Agitate and Litigate" was delivered on 11 January 2021 as part of the
– organised by the family of KG Kannabiran (1929-2010) to celebrate his life, work and its futures].
Dear friends, colleagues and comrades, I was so happy when I received this invitation from Kalpana to do this video and to talk about the main lesson that I received from Kanna. In my speech I would like to talk about how he directly influenced me in my work, which is law for the poor. I would also talk about my journey in law and in human rights, my personal cases, and our stories. This is perhaps relevant today because of the very tough times in which we find ourselves today and the enormous things which are needed to be done.
'Kanna'
I can almost anticipate what Kanna would have done today. He would, of course, have resisted the present draconian regime and would have gone to jail. He would have been put in jail like so many lawyers and he would have been charged with sedition and for waging war against the state. His only weapons would be his tongue and his brain – no machine-gun, no bomb and no knife. But his thinking and his words were as lethal as any of these weapons, so to speak, and I am certain he would be in jail along with the Bhima Koregaon lawyers were he alive.
The most important lesson that I learnt from Kanna was very early in my career. Before moving to Delhi in the year 2000, I spent 10 years in the Labour Courts doing Trial Court work, then practiced in the Bombay High Court for 10 years and finally came to Delhi to practice in the Supreme Court. I was very alone and I had no one to guide me and no one to help me. I would so often come out of the court during the lunch break and call Kanna and ask him for his guidance on cases. Sometimes I would have known the answer but I wanted to hear his reassuring voice telling me that I was on the right track. Equally often he would correct me. But he was such a source of consolation that I could talk to him and go back to court after lunch and be totally confident in what I was saying because I had checked with Kanna.
As a young lawyer one tends to over emphasize case law. Young lawyers often make the mistake of citing precedents and reading judgments before explaining the facts and clearly stating the main submissions. I too made this mistake several times. I meticulously maintained a case law diary running into several volumes and I had a judgment for every conceivable situation – or so I thought. This is partly due to the legal education system at that time (perhaps today as well) where original thinking and thinking against the mainstream (revolutionary thinking) hardly exist in the law universities.
The first thing Kanna told me was not to start with case law. The first thing, he said, was to think of how the letter of the law and justice fits together. What does your conscience tell you? What does your heart tell you? Then, he would say, develop your arguments on the basis of first principles. Even if a Supreme Court decision is cited against you, one must have the mental strength and courage to say that it is wrong. In short, become a young thinking lawyer – a conceptually argumentative lawyer.
"You are a young, thinking lawyer, a dreamer of revolution, and a political person", he would say, "You understand social change and revolution". Therefore, "Think like a revolutionary even in law. Think radically differently. After that, focus on convincing the judge that you are conceptually correct and that your argument fits with the statute. Then look at case law, searching for judgments that would help you get around the bad judgment cited against you. Remember always to develop your concept independently, and be totally convinced about the point you want to make. Then make it fearlessly."
It took me sometime to shift to that approach. Initially I was apprehensive. Later I realized that good lawyers are generators of case laws and not mere followers. One has to think radically, from the pro-poor and working-class point of view. One has to argue from the point of view of Dalits, workers, slum dwellers, tribals and women. One must understand that young lawyers could possibly be, despite their inexperience, manufacturers of radical case law.
He told me and others, to dive deep into our experiences in social movements and to draw from our interactions with workers, Dalits, and tribals. "You have seen their suffering and anger", he would say, "Let it mould your thinking. Draw from your experience in movements, and then make your own case law. Your words would be different. It would have a true ring-a genuine ring to it, and you would get judgments from the Courts for others to follow."
I really miss Kanna. He had a truly revolutionary approach to law. I picked up a tiny bit of that from him.
The power of the working class
I was studying in IIT Bombay when the Emergency was imposed by Indira Gandhi. There was a huge railway strike. At midnight the railway workers and their families were thrown out of their quarters by Indira Gandhi. As a young student, I remember seeing Praful Bidwai and others trying to help the families find a place to stay. Praful went on to establish himself as a prolific journalist. My mind was troubled by scenes of repression. Then there was a massive strike of textile workers. Millions of workers joined Datta Samant's call just as the country mobilized against Indira Gandhi when Jayaprakash Narayan gave his war cry to the people for a 'Sampoorna Kranti'. That slogan, valid and relevant even today, would probably land all of us in jail for sedition.
In these days, I experienced and internalized the awesome power of the people. These movements affected everyone. Leaders of opposition were thrown in jail. Millions of workers protested and the Prime Minister was bought down. I began to understand the power of the people to force massive social and economic change through people's power. I understood that this was where the core of political change lay. During this period, working class people suffered torture by the police. Their slums were demolished. They were denied education and healthcare and yet they showed an indomitable spirit to resist. This is something people generally don't see unless they live through a period of revolution. During periods of uprising, people in the movements are thrown in jail, they are separated from their families, they face bullets, and yet they retain an absolute power to conquer adversity.
Courts do not always understand social movements
Let me now talk about the interrelationship between the courts and the movements.
I remember the Hon'ble Justice S.C. Pratap, of the Bombay High Court. He was a reasonable judge who had the misfortune of having the Dr Datta Samant Recognition of Union case land up on his table. Now, there was no doubt that all the textile workers of Mumbai were members of his Union – the Maharashtra Girni Kamghar Union – and that the opposing "chamcha" Union – the Rashtriya Mill Mazdoor Sangh – had only a handful of workers but complete state support. The statute was an ass that granted recognition on the basis of paper work created by the management and the chamcha union. Judges, however, are not supposed to be led by asses. A good Judge, searches for the truth, fashions new weapons and does complete justice. Justice Pratap was just not up to this task. Going by the fake paper work and ignoring the massive rallies of millions of textile worker, he delivered judgment in favour of the chamcha union granting them recognition and making them the sole bargaining union. As he read his judgment, the workers reacted with fury throwing chairs at the Judge who beat a hasty retreat. Until then, I really believed in the legal system; all young lawyers do but it only takes one such experience to shatter the myth of rule of law.
Dr Samant went on to expand massively in the city of Bombay and elsewhere. As a young law student and a member of his union, I saw that the Court system exposed for what it was – an instrument of state power, corrupted by the Corporations, lacking spine and integrity with the exception of a few well-meaning judges. I saw wage adjudication done so painfully and slowly that workmen received a miserly increase of Rs 200 after 5 years litigation. Then Dr Samant came on the scene and told the unions to never go to the Courts. He organized them at the factory gates and made the lives of the management miserable forcing them to part with massive increases in wages (which they could well afford) rendering wage adjudication by Courts obsolete. There were complaints of strong-arm tactics. Naturally. When the rule of law breaks down, the working people will take the law into their own hands. The fault lies not with the people but with the Courts and the manipulation of this institution by people with power.
Indian Judges and Courts functioned reasonably well till the 1980s. Perhaps the reason for this is to be found in the fact that judges of that period still had memories of the freedom struggle and the power of the people to change the destiny of this great nation. But as time passed that memory faded with each successive generation. Then came globalization.
Globalization can be summarized in three words, "subsidies-are-bad". Under social democracy (the period up to 1980) the dominant notion in governance was that the entire country rich and poor alike should be taken forward and although equality was not possible under capitalism some "trickle down" would take place so that working people remained partially satisfied. This too is a rotten concept and a poor substitute for genuine social democracy. But globalization got rid of even this "crumbs off the table" economical and political policy.
Under globalization, BJP and Congress version alike, the State was only responsible for promoting entrepreneurship and capitalism which would, in turn, supposedly generate employment which would put money in the workers' pockets with which they could buy education, housing, healthcare and food. These social activities would no longer be the duties of the state.
The Judges who today fill the ranks of the Indian Judiciary are wedded to this notion of globalization. Talk of socialism would be like committing a capital sin. With such a regressive social outlook nothing of value can be expected. This is especially so because with globalized economic planning government subsidies that went to the poor for housing, food, education and healthcare were drastically pruned and flowed upwards for funding projects for the rich and middle classes. India had come a full circle- from the "trickle down" of social democracy to the upward flow of globalization. Naturally this saw GDP increase to 7% while hunger, poverty, homelessness, ill-health, illiteracy and environmental degradation increased exponentially. Healthcare needs 6% of GDP, the Union budget provides for 0.9%. Food needs 3%; what is provided for is less than 1%. Education needs 6% but gets only 2%. This is why you have schools without teachers, hospitals without medicines and equipment and India earns the dubious distinction of being the hunger capital of the world.
Supreme Court judgments which are against working class
I would now talk about two judgments that killed the working class and converted India into a country of slaves. These two judgments are the Steel Authority of India (SAIL) case and Uma Devi.
SAIL (RK Panda vs. SAIL) related to the interpretation of the provisions of the Contract Labour Act, 1970. The provisions were simple. If the work of the establishment was of a permanent and perennial nature, then the workers should be permanent and not kept as contractual as if their employer was a contractor and not the establishment. A Bench of the Supreme Court in AIR India Statutory Corporation made a brilliant decision saying so but this was not liked by the Industrialists. Miraculously a larger Bench was set up by then then Chief Justice which promptly went about declaring that the abolishment of the Contract Labour System would result in the abolishment of the labour itself! In other words, by workers winning their case before the Contract Labour Board and establishing that the work was perennial, the workers would lose their jobs! It's like saying that "Garibi Hatao" is not the abolition of poverty but the doing away of poor people! This one judgment affected and continues to affect millions of workers who toil in permanent work positions as if temporary and ad hoc. Thus the judgment created millions of slaves.
Then we have the Uma Devi judgment relating to casual workers in government departments who had worked as ad-hoc for decades. The earlier judgments were brilliant and simply stated that after a period of time - say 5 years, such ad-hoc workers should be made permanent. This was not liked by government and so a second miracle occurs. Another Constitutional Bench of the Supreme Court is established which laid down that even if a workman has worked all his life as ad hoc, he can never be regularized. So now we have millions of ad-hoc workers in public enterprises and government departments working on minimum wages and having no security of tenure. These two judgments effectively created India as a country of slaves.
Courts failing to understand agony of working class
I would now talk about the misconduct cases.
Globalization created another kind of Court – the Cruel Court. The earlier principle followed was that a workman would not have his services terminated for a minor misconduct, because termination was considered as economic death. For a few days' absenteeism, for sleeping once during a night shift and so on, workmen would not have their services terminated, but were given minor punishments such as warnings and a fine. Then came the new generation of judges. Termination of services became the rule and these were shockingly disproportionate. The most prominent of these were the Bus Conductor cases. If the bus conductor while tallying the money received and the tickets sold had Rs 3/- more than he should have, his services were terminated on account of corruption and the Supreme Court waxed eloquent on corruption being corruption whether big or small, and advised that corruption had to be dealt with an iron fist. While corruption spread like a cancer through the legal system the poor bus conductors were singled out for special treatment. No Judge could understand the implication of termination of services. Once terminated, the workmen would take their children out of school, sell their jewelry and vessels, and the family would shrivel away and probably die of starvation.
Supreme Court privatizes education
Coming to Globalization and the Supreme Court. Let me take you to the TMA Pai judgment. In Unnikrishnan v State of AP case, the Supreme Court said that education is a fundamental right and the state had to take a socialist approach to education. This was obviously not liked by capitalists in the country who realized the enormous potential of commercializing education. So, a third miracle occurs. A larger Bench of the Supreme Court was constituted to set aside Unnikrishnan's socialistic approach (education is not meant for making profits). In TMA Pai v. State of Karnataka, the Supreme Court opened the doors for capitalist money power to enter education. Resultantly huge increases in fees began and spread across in the country. Crass commercialization spread like a cancer. The "mission approach" died.
All in all, the social viewpoint of the judiciary is like that of our capitalists. This was unlike some of the capitalists of Europe who understood that for good quality production a healthy and content workforce was necessary, that workers should have decent housing and healthcare facilities and scientific training so that they can produce high quality products. The attitude of Indian capitalists is often (not always) like the slave-traders of before. Providing safety equipment is hardly ever done. The working-class lives in disease-infected slums. Paying below the minimum wage is the norm. Falsification of workers records is routine. Inspectors are bribed. All this could have been corrected and India could have become a top-class manufacturer of quality products. What Indian capitalists do not understand is that without justice at the workplace, India has no future. What the Indian Judiciary does not understand is that without justice in the Court system, India will surely die. Without a moral and spiritual backbone, this country has no future.
COVID-19
Now let me come to COVID and the turning point in Indian labour history.
When millions of migrant workers last year decided to walk hundreds of kilometers with their wives and children to try and get back to their homes in the villages, they went through the greatest education of their lives. They saw Indian capitalism naked and cruel not bothering if they lived or died. They learnt that no one in power was to be trusted and that Indians had lost their ability to speak the truth. The working people could trust no one. A fundamental rupture took place in the Indian society between the rich and the poor.
First, the factories were closed overnight without any preparation to arrange for transportation to send the workers home. The public distribution system which provided subsidized food grains to the poor closed down. Workers who were unable to pay for rent since their factories were closed were thrown out by the landlords, and were on the streets. They waited for a couple of months hoping that their factories would reopen and when they were on the brink of starvation a huge migration of millions of starving workers on foot began. A number of public-spirited individuals and organizations moved the Supreme Court seeking reliefs for migrant workers in public interest but they were turned down by a Court indifferent to the plight of the workmen.
The working class will remember this treachery of the State and the politicians of all political parties. They will remember that the Supreme Court was no longer the institution it once was where the poor could petition the judges in times of despair. One can only hope that this despair converts to solidarity and revolutionary fervor to build a new India. I would say in periods of darkness, a breakthrough of light is imminent. A darkness of this sort will result in a fundamental reset in our evaluation of what Indian democracy is and of how worthless it has become and why it's necessary for us to mobilize, organize, educate, litigate, and fight tooth and nail against this kind of system.
Criminal Injustice in the Courts
Before I end, I want to talk about two things in criminal law. First is sedition which is used by the State in criminal prosecution everywhere. If you're a cartoonist and you draw a cartoon of our great political leaders, then sedition. I want to bring to your notice two cases which may help you in the Courts in defending cases of sedition. The first is Balwant Singh v. State of Punjab (1995) 3 SCC 214 and the second is Bilal Ahmed Kalu (1997) 7 SCC 431. These are very important judgments which can be used to fight against frivolous sedition cases where every criticism of the government results in criminal prosecution for sedition.
During the colonial period. British law needed only strong words against the Monarchy to justify a criminal prosecution for sedition. After Independence and during the last four decades almost every country which had sedition in its Penal Code, repealed the section. India retains the section. It was constitutionally challenged in Kedar Nath's case and read down but the drafting of the decision is very wishy-washy. It basically says that sedition as interpreted by the Indian Courts differs from sedition under colonial law in that in the latter case, words expressing a desire to overthrow the government would by themselves be enough to arrive at a conviction of the accused. Under Indian law, sedition would additionally require an overt act to overthrow the government by force and violence.
The two judgments mentioned earlier relating to sedition deal with a case from Punjab and one from Kashmir. In the Punjab case, the accused came out onto the streets and said "Khalistan Zindabad!" "We should gather guns and fight for an independent country". In the Kashmir case, the accused shouted in a public place "Azaadi! Gather weapons and fight for independent Kashmir". Both the accused were convicted for sedition. When the matter came to the Supreme Court, the Court asked as to what was actually done apart from the provocative slogans. When informed that no overt act had taken place, the accused were acquitted. The lesson to be learnt from these two judgments is that words, even provocative words hostile to the government cannot amount to sedition. Posters calling for revolution cannot, in the absence of the overt act, amount to sedition. Provocative cartoons do not amount to sedition. There are at least 100 cases of sedition pending in the country today of this nature designed to intimidate human rights activists and obstruct the exercise of free speech.
Leading Human Rights lawyers in jail
In this period of naked fascism, the State has resorted to an extreme action never taken before and has jailed human rights lawyers of repute who have spent all their lives defending the defenseless. What stands between them and freedom is an obnoxious judgment of the Supreme Court in NIA vs. Zahoor Ahmad Shah Watali where the Supreme Court held, contrary to a long line of decisions of the Supreme Court, that while deciding bail applications the prosecution was entitled to rely on documents that would not be legally admissible during the trial. Such an astonishing proposition has never been heard, let alone accepted, before. In Sudha's case, this is a letter not recovered from her, not in her handwriting, not signed by her and yet used against her to reject her bail applications. In Stan Swamy's case and in Surendra Gadling's case these documents are police insertions in the laptops after arrest and seizure of the laptops.
All of you must read the sterling dissent of Justice D.Y Chandrachud in the Bhima Koregaon case where he said that the Maharashtra police ought not to be investigating this case and an investigation by an independent agency should be ordered.
A ray of hope
Let's talk about the Gujarat Mazdoor Sabha casewhich was delivered by the Supreme Court on a petition challenging a statute made by the Central Government proposing to increase the hours of work without appropriate compensation. The Supreme Court said, "The State can't eliminate provisions promoting dignity and equity at the workplace...The State can't force workers an already worn-down class of society into the chains of servitude." In times of darkness such as these, a little ray of hope.
Little Diyas
So my dear friends, on this note, I'll stop. There is so much to be done in the Courts. No matter how bad things may be, always remember, that there are some Judges who are good human beings still in our system. We must hope that by fighting we inspire other Judges to change their way of thinking. Because otherwise, against this fascist government, there is no hope. The only thing that stands between us and jail, is the Judiciary. The only thing that can save democracy is the sturdy, robust organizing of labour and the people. It will happen. I don't know how soon, but I have this certainty that it will happen. That a day will come, when things will change dramatically.
I want to end with a little story of Sardar Jaswant Singh Khalra (1952-1995). He had found the list of those extra-judicially executed in Punjab by the Punjab police. Hundreds of Punjabi boys were killed by the police. When they disappeared, KPS Gill laughed at the accusations and said that all these boys had migrated to Canada, America and Europe and were now making false accusations. He said that they were all abroad. Jaswant Khalra went to the crematoriums of Punjab and found that the dead bodies had been brought there by the police after execution. So, while on the one hand saying that the Punjab police had no idea where these boys were, the police was cremating the bodies of the disappeared. The Hawaldars who were carrying the bodies for cremation in trucks were so foolish as to give their buckle numbers to the crematorium in-charge. Sardar Jaswant Singh Khalra took this evidence to Canada and told his story before the Canadian Parliament and it spread across the world. When the time came for him to go back, he got a phone call from the Punjab police saying "Khalra saab, you want to know from the Punjab police how many boys were killed? You come back to India. We'll give you that number, plus one." He returned against advice. Before he left, in April 1995, he gave a speech in Punjabi which he said, "We are in a period of darkness. There is darkness all around. I am only a little diya, and I spread my light as much as I can. But if all of us are to be like little diyas, we would be brighter than the sun!"
Thank you.
Case Citations
AIR India Statutory Corporation vs. United Labour Union & Ors. (1997) (9) SCC 377
Balwant Singh v. State of Punjab (1995) (3) SCC 214
Bilal Ahmed Kalu (1997) 7 SCC 431
Gujarat Mazdoor Sabha and Anr v. State of Gujarat Writ Petition (Civil) No. 708 of 2020.
Kedar Nath Singh vs. State of Bihar 1962 AIR 955
NIA vs. Zahoor Ahmad Shah Watali 2019 (5) SCC
R.K Panda & Ors. vs. Steel Authority of India & Ors. 1994(5) SCC 304
Shri Ganpati Bus service, Thirunelveli vs. Presiding officer, labour court & Ors. 2001 (2) SCC 602.
TMA Pai vs. State of Karnataka (1994) (2) SCC 199
Uma Devi vs. State of Karnataka (2006) (4) SCC 1
Unnikrishnan vs. State of A.P. (1993) 1 SCC 645
Kedar Nath Singh vs. State of Bihar 1962 AIR 955
Gujarat Mazdoor Sabha vs. State of Gujarat, W.P (C) 708 of 2020
Colin Gonsalves is the Founder of Human Rights Law Network (HRLN) and developed it into a national organization operating out of 28 offices spread throughout India. He has practised in the Labour Courts in Maharashtra and the Bombay High Court where he was designated as Senior Advocate, before moving to the Supreme Court of India in 2001. Colin Gonsalves received the Right Livelihood Award in 2017.
